IPO-bound Flipkart has landed in fresh legal trouble, with unauthorised third-party sellers allegedly exploiting its “latching on” feature to use an original manufacturer’s brand name and images in their own product listings without consent. The Delhi High Court recently observed that such conduct amounts to “passing off.”
What is driving the news? Shapermen, a men’s shapewear and compression garment brand, approached the Delhi High Court, alleging that Flipkart’s latching on feature allows sellers to ride “piggyback” on the goodwill, reputation, and commercial success of legitimate brand owners.
What is Flipkart’s latching on feature? Latching on is a practice in which third-party sellers add products under an existing brand listing and use photographs of that brand’s products in their own listings.
This can be done through the ‘Opportunities’ option under the ‘Listings’ tab on Flipkart’s seller platform.
How is Flipkart’s latching on feature detrimental for brands? Shapermen claimed in its lawsuit that by latching on to a popular brand’s product listing, an unauthorised seller can:
What does the suit allege? The complaint alleges that several third-party sellers were marketing their own products under the SHAPERMEN brand without authorisation.
According to the suit:
The company conducted test purchases in May and found that the products delivered through the impugned listings carried no SHAPERMEN branding, labels, tags, or inserts. It alleged that the sellers were using its brand name as “bait.”
Flipkart accused of being ‘complicit’ in passing off: The suit alleges that despite multiple complaints by Shapermen alleging third-party sellers were using its brand name and images for their own listings without consent, Flipkart failed and “neglected” to take any action.
According to the complaint, the e-commerce platform failed to fulfil its due diligence obligations as an intermediary under Section 79 of the Information Technology Act and was therefore “complicit” in the alleged passing off.
What did the court say? After examining the material placed on record, the Delhi High Court held that a prima facie case of passing off had been made out against the defendants.
“The material placed on record indicates that Defendant Nos. 2 to 13 have exploited the ‘Latching On’ feature on the Platform and inserted themselves as alternative sellers against listings of the Plaintiffs’ Products,” the court observed.
The court further noted that the listings continued to display the SHAPERMEN marks, photographs, and listing content, resulting in the sellers presenting themselves under the same commercial presentation as the brand’s products.
“In these circumstances, there exists a real likelihood that an unwary consumer of average intelligence and imperfect recollection, encountering the Impugned Listings, may be led to believe that the Defendants’ Products originate from, are affiliated with, or are otherwise connected with the Plaintiffs’ Products,” the Court observed.
The court has restrained the sellers from using the SHAPERMEN and SHAPER MEN marks, or any deceptively similar marks, on Flipkart or any other e-commerce or quick-commerce platform until the next hearing.
Flipkart has been directed to delist, take down, or disable access to the listings identified in the suit. If additional unauthorised latching-on listings are reported by the brand owners, Flipkart must suspend, block, disable access to, and delist those listings within 72 hours of receiving notice. The court has also directed Flipkart to disclose details of the concerned sellers within seven days of receiving such notification.
Why this matters: This is not the first time Flipkart has faced legal scrutiny over the misuse of its latching on feature. In 2024, the Delhi High Court observed that the feature cannot be used to sell counterfeit products or mislead the public into believing that a product originates from a particular source when its actual source is different. In 2022, the court directed Flipkart to disable the feature. Justice Pratibha Singh observed that latching on cannot be used or offered in a manner that harms the owner of a brand or the creator of an original product.
The ongoing legal dispute between Shapermen and Flipkart is further evidence that the latching on feature remains vulnerable to misuse and continues to be a recurring problem in e-commerce. This raises a key unresolved question: Must every brand individually approach the courts to stop sellers from misusing trademarks and selling counterfeit products on e-commerce platforms?
Here’s how Flipkart can fix the problem: Nikhil Pahwa, founder and editor of MediaNama, has proposed that Flipkart allow brands to decide which sellers can use their branding in listings. He also suggests creating an automated approval mechanism that seeks a brand’s consent whenever a seller attempts to list products under its trademark.
“This prevents Flipkart from having to become the arbiter of who is a verified seller, prevent counterfeit selling and bring trust to the marketplace by restricting biased sellers. This also creates a hierarchy of authorised and unauthorised sellers,” Pahwa said.
In 2014, while ruling on a complaint against Snapdeal for not allowing Ambitious Marketing to retail SanDisk products, the Competition Commission of India held that it was “a prudent business policy” for SanDisk to insist that its storage devices sold through online shopping portals be sourced only from its authorised distributors.
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